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Retired Immigration Judge: There is Still a Right to Asylum after Illegal Entry

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Updated: 5:22 AM PDT Jun 23, 2018

Retired Immigration Judge: There is Still a Right to Asylum after Illegal Entry

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Updated: 5:22 AM PDT Jun 23, 2018

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WEBVTT WELCOME TO "MATTER OF FACT PRESIDENT TRUMP'S POLICY OF SEPARATING CHILDREN FROM THEIR PARENTS AT THE U.S.-MEXICO BORDER DID NOT SURVIVE IN THE COURT OF PUBLIC OPINION AND HIS NEW POLICY TO KEEP FAMILIES TOGETHER MAY NOT SURVIVE IN A COURT OF LAW. HE'S KEEPING HIS ZERO-TOLERANCE POLICY INTACT AND WANTS THE DEPARTMENT OF HOMELAND SECURITY TO PURSUE CRIMINAL CHARGES AGAINST ANYONE WHO CROSSES THE BORDER ILLEGALLY. THE EXECUTIVE ORDER AIMS TO KE ENTIRE FAMILIES IN DETENTION CENTERS INDEFINITELY AS THEIR CASES WIND THROUGH A LONG COURT PROCESS. THAT IS A PRACTICE JUDGES HA BARRED UNDER PREVIOUS ADMINISTRATIONS. THERE'S ALREADY A BACKLOG 700,000 CASES IN THE IMMIGRATION COURTS. FORMER IMMIGRATION JUDGE PAUL WICKHAM SCHMIDT JOINS US TO TAKE A LOOK AT HOW THIS REALLY MIGHT PLAY OUT. >> THANK YOU FOR INVITING ME. SOLEDAD: FIRST OF ALL, WHEN SOMEBODY WHO IS TRYING TO COME INTO THE COUNTRY, DECIDING THE ARE A LEGALLY TO CROSS OR PRESENT THEMSELVES FOR AMNESTY, WHAT ARE THE OPTIONS FOR BORDER PATROL? JUDGE SCHMIDT: THEY ARE SUPPOS TO HAVE PAPERS, PAPER SHOWING THEY ARE A U.S. CITIZEN, PAPER SHOWING THAT THEY ARE A FOREIGN NATIONAL WHO HAS A VISA, PAPERS SHOWING THEY ARE A GREEN CARD HOLDER OR COMING BACK AS A STUDENT. IF THEY HAVE NO PAPERS AND APPEARED TO BE FOREIGN NATIONALS, NOT U.S. CITIZENS, THEY CAN BE SUMMARILY EXCLUDED, ORDERED REMOVED BY THE INSPECTOR, THE CBP INSPECTO THEY ARE SUPPOSED TO ASK BEFORE EXECUTING THAT ORDER, IS THERE ANY REASON THAT YOU FEAR RETURN? IF THE PERSON SAYS, YES, I CAN GO BACK. I'M AFRAID. THEY ARE SUPPOSED TO BE REFERRED TO A DIFFERENT OFFICE. SOLEDAD: THAT PUTS THEM IN A DIFFERENT CATEGORY. THEORETICALLY, THEY COULD GO A ASK FOR ASYLUM. JUDGE SCHMIDT: THE ATTORNE GENERAL DECIDED FOR THE FIRST TIME -- OTHER ADMINISTRATIONS HAVE ALWAYS TRIED IT -- AS A DETERRENT, HE DECIDED TO PROSECUTE EVERYBODY WHO CROSSED THE BORDER OUTSIDE OF A PORT OF ENTRY. THERE IS A CRIME OF ILLEGAL ENTRY, BUT FOR THE FIRST OFFENSE, A MISDEMEANOR, MINO CRIME, AND FOR MOST OF O HISTORY, PEOPLE, PARTICULARLY IT'S THEIR FIRST TIME, HAVEN'T BEEN PROSECUTED FOR A MISDEMEANOR. SOLEDAD: THE REASON THE CHILDR ARE BEING SEPARATED IS YOU HAVE TO HAVE A DUAL PAT CHILDREN CAN'T HAVE THAT SAME PATH THAT ADULTS HAVE. JUDGE SCHMIDT: THE CHILDRE AREN'T BEING CHARGED WITH A CRIME, SO THEY CAN'T BE PLACED IN CRIMINAL DETENTION. CHILDREN GO INTO THE IMMIGRATION SYSTEM RIGHT AWAY WHILE THE PARENTS DON'T GET TO THE IMMIGRATION SYSTEM UNTIL THEY'VE GONE THROUGH PORT. SOLEDAD: WHICH BRINGS US TO TH FLOOR'S AGREEMENT, WHICH PEOPLE HAVE BEEN TALKING ABOUT. THE FLOOR IS AGREEMENT -- JUDGE SCHMIDT: IT'S A COURT ORDER. SOLEDAD: CHILDREN CAN'T BE HEL INDEFINITELY. JUDGE SCHMIDT: NOT ONLY CAN' THEY BE HELD INDEFINITELY, THEY CAN ONLY BE HELD FOR 20 DAYS AND THEY ARE ONLY SUPPOSED TO BE HELD IN FACILITIES THAT ARE LICENSED AND SUITABLE FOR CHILD DETENTION. SOLEDAD: HOW LONG POTENTIALL COULD A FAMILY BE IN DETENTION WHILE THEY WAIT FOR THEIR CASE IN? JUDGE SCHMIDT: A DETAINED ASYL CASE COULD TAKE ANYWHERE FROM -- IN ARLINGTON, IT WAS PROBABLY FROM SIX MONTHS TO TWO YEARS, IT GOES ALL THE WAY TO THE APPELLATE COURTS. YOU CAN'T POSSIBLY HAVE A FA ASYLUM HEARING FOR SOMEBODY AND 20 DAYS. SOLEDAD: SOMETIMES, I THINK WH LISTENING TO THESE CONVERSATIONS AROUND PEOPLE TRYING TO ENTER THE COUNTRY, ESPECIALLY THOSE WHO HAVE ASYLUM CLAIM, THERE A ALL CRIMINALS, IT'S ILLEGAL, BUT THERE IS LEGAL ATTENTION. JUDGE SCHMIDT: THE LAW SAYS TH AN INDIVIDUAL ARRIVING AT THE BORDER PORT OF ENTRY IN THE UNITED STATES, REGARDLESS OF IF THEY HAVE A LEGAL STATUS OR NOT, HAS A RIGHT TO APPLY FOR ASYLUM. WHAT THEY SHOULDN'T BE DOING IS ENTERING THE COUNTRY WITHOUT GOING TO A POINT OF INSPECTION, BUT THAT DOESN'T DEPRIVE THEM OF THE RIGHT TO APPLY FOR ASYLUM. SOLEDAD: HOW DO YOU THINK THIS PRECEDES? WILL THIS GO INTO FAMILY DETENTION NOW? JUDGE SCHMIDT: WHAT DO I THI WILL HAPPEN IN? IF THE FEDERAL COURTS HAVE BACKBONE, THEY WILL PUT AN END TO THIS. FLORES PROTECTS FUNDAMENTAL RIGHTS OF THE YOUNGEST AND MOST VULNERABLE. NOT ONLY SHOULD IT BE CHANGED BYLAW. IT SHOULD BE ENACTED INTO LAW NO FUTURE ADMINISTRATION IS ALLOWED TO CARRY OUT THESE GROTESQUE HUMAN RIGHTS ABUSES. SOLEDAD: IT'S SO NICE TO HAVE YOU IN TO GIVE US AN EXPLAINER. JUDGE SCHMIDT: THANK

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Retired Immigration Judge: There is Still a Right to Asylum after Illegal Entry

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Updated: 5:22 AM PDT Jun 23, 2018

The Trump administration announced that it will stop criminally prosecuting migrant families illegally crossing the border, although officials say the “zero tolerance” policy is still in effect. However, families still be detained if a federal court amends the Flores agreement, as the Trump administration has asked it to do. The Flores agreement prohibits the government from detaining children from more than 20 days. The administration is hoping that order can be amended to allow the children to be detained with their families indefinitely. Today, immigration courts are more backlogged than ever with more than 700,000 cases pending between less than 350 judges. Soledad O’Brien sits down with retired immigration judge Paul Wickham Schmidt to discuss what the law says about family separations and applying for asylum.